North Alabama Traction Co. v. Taylor , 3 Ala. App. 456 ( 1911 )

WALKER, P. J.

The complaint attributes the injury complained of to the alleged negligence of the defendant’s (appellant here) employee or employees in charge of a street car on which the plaintiff was a passenger in starting the car while the plaintiff was in the act of alighting. The defendant pleaded the general issue and also contributory negligence on the part of the plaintiff.

The rulings of the court in sustaining objections by the plaintiff to two questions propounded to plaintiff’s witness Zella Coleman on cross-examination are assigned as errors. Each of those questions called for a mere deduction or opinion of the witness, and it was not error to sustain the objections interposed to them;

It is suggested that written charge 2 requested by the defendant should have been given, because of the absence of proof to sustain the allegation of count 1 of the complaint that the plaintiff was “exercising all due and proper care on her part.” Under the evidence, it was a question for the jury whether such was the fact. Besides, it seems that when contributory negligence, as well as the general issue, is pleaded, such an averment in the complaint does not change the burden of proof, and that in such case a defendant who sets up and relies on the defense of contributory negligence has the burden of proving that defense.—McDonald v. Montgomery Street Railway, 110 Ala. 161, 177, 20 South. 317.

The only reason advanced by counsel for the appellant for imputing error to the refusal to give charge 3 requested in its behalf is that there was an absence of proof to sustain the allegation of the second count of the complaint in reference to the conductor’s signaling the car to start. This claim is not founded in fact. There was proof in support of the allegation referred to.

There was no error in the refusal to give charge 9 requested by the defendant. That charge was susceptible of conveying the impression that the plaintiff’s right to a recovery did not depend upon the findings by the jury on the issues of fact submitted to them, hut might be defeated if a juror was satisfied from the evidence that “she ought not to recover,” without regard to whether the law, as applicable to the facts as found from the evidence, would justify such a conclusion.

In the brief of the counsel for the appellant, it is stated that “charges 12, 13, 17, 18, 19, 21, and 24 should have been given;” and the only proposition advanced in support of this assertion is that “a reasonable time is all that is required of defendant to allow passengers to make up their minds as to whether they will get off, or remain in the car.” The charge's mentioned, considered together, involved several separate and distinct propositions. This summary method of dealing with a number of rulings involving different propositions is not a compliance with the requirement of the rule governing the method of preparing a brief in behalf of the appellant that each ground of error insisted on be “separately presented and numbered in . proper order” (Civil Code 1907, p. 1508, rule 10), and cannot be regarded as such an insistence in argument on the assignments of error so referred to as to put upon the court the duty of reviewing the several rulings thus merely called to its attention.—Harper v. Raisin Fertilizer Co., 148 Ala. 360, 42 South. 550; Hodge et al. v. Rambo, 155 Ala. 175, 45 South. 678. Besides, it is apparent at a glance that some of the charges embraced in the one sweeping imputation of error were properly refused on the authority of the ruling in the case of Highland Avenue & Belt R. Co. v. Burt, 92 Ala. 291, 9 South. 410, 13 L. R. A. 95, as to the duty of the conductor of a street car to see and know, before starting the car again after it has stopped, that no passenger is in the act of getting off or on, or otherwise is in a perilous position.

The appellant cannot complain of the refusal of the court to give charges 11, 17, and 25, as it had the benefit of the propositions embodied in those charges under other written charges given at its instance.

Charge 15 requested by the defendant was properly refused, as being an invasion of the province of the jury. The evidence in the case was such as to make it a question for the jury whether an attempt by the plaintiff to alight from a moving street car constituted negligence on her part.—Watkins v. Birmingham Railway & Electric Co., 120 Ala. 147, 24 South. 392, 43 L. R. A. 297.

Affirmed.